Tag Archives: constitutionalism

America was founded on the enlightenment principles of classical liberalism. Limited government and the strict application of the rule of law were intended to ensure individual liberty. The Constitution’s role in institutionalizing “Americanism” is central and fundamental. It was and is the contract of a sovereign people as to what its national government is and what that government is authorized to do.

Because the Constitution was designed to limit the powers of the Federal government, it has been the obstacle statists have sought to avoid since the second coming of the progressive movement in the 1930’s. The now decades long assault on the Constitution has been nothing less than an assault on that which is central and fundamental to Americanism – limited government and the rule of law. By slowly defeating the Constitution, modern liberalism is slowly defeating Americanism. By logical extension, it is slowly defeating the structural legal protections of individual liberty.

This assault on Americanism is very much like a metastasized cancer’s assault on a living organism. Modern liberalism attacks the Constitution, the rule of law, and individual liberty not by utilizing a coordinated strategy targeted at some perceived vulnerability of the body politic, but by a systemic multi-faceted attack on Americanism. Consider the modern liberal issue of same sex marriage. In modern society, marriage exists as a legal union, recognized by the state. Rights and obligations are conferred by the state on those who enter into such a legal union. Accordingly, it makes perfect sense that those who find themselves outside of the legal qualifications for marriage, but are otherwise similarly situated in terms of their commitment to one another, would challenge the notion that the state should exclude them from the rights, benefits and obligations enjoyed and undertaken by those who seem to them arbitrarily to qualify. To those who love liberty and shun the illegitimate force of the state, this argument is easily understood and persuasive. If those advocating same sex marriage sought it’s implementation in accordance with our Constitution and the rule of law – by pursuing legislation in each state to accomplish legal recognition – their objectives and their tactics for achieving them would be in accord with principles of liberty and in accord with the rule of law and the popular sovereignty of the American people as expressed in the Constitution.

But the left has not pursued legal same sex marriage in accordance with the Constitution and the rule of law. Instead, it has sought a judicial solution. Though the Constitution is subject to legal amendment within the rule of law by following the processes specified in Article 5, statists seek to “amend” it through the courts by obtaining outrageously ridiculous rulings from activist judges who almost single handedly modify the Constitution’s “meaning” and make it conform to whatever the modern liberal establishment demands. With each fraudulent interpretation, the rule of law is defeated and the Constitution’s role as the underpinning of limited government is weakened. Sadly, we’ve reached the point where the notion that the Constitution effectively limits the powers of the Federal government is legitimately subject to question. By logical extension, we’ve reached the point where the notion that the Constitution effectively protects personal freedom is increasingly subject to question.

The Constitution clearly does not protect same sex couples from governmental exclusion from the institution of marriage. Even so, modern liberalism has sought the imposition of same sex marriage by and through a fallacious interpretation of the 14th Amendment. They have convinced activists courts to reject the clear language and the known purpose of the 14th Amendment to mean something which was clearly not meant when it was ratified by a sovereign people. In so doing, they have imposed a misinterpretation of the most fundamental law of the land upon all of society. That the 14th Amendment does not restrict the states from excluding same sex marriage can not be seriously questioned. It’s beyond argument that the 14th Amendment would not have been ratified in 1868 if the people understood that it would be interpreted to create a right to same sex marriage. Indeed, it is beyond serious question that at no time since the original ratification of the Constitution in 1788 would an Amendment creating a right to same sex marriage have been ratified by the sovereign people of the United States. That being the case, what possible justification can any court have for interpreting the 14th Amendment to create such a right? Modern liberalism seeks to achieve by judicial fiat that which it can not achieve legally – a de facto amendment to the Constitution. Thus far, what they’ve won for their efforts appears to be the imminent nationwide legal recognition of same sex marriage.

But legal recognition by the states and by the Federal government is not nearly enough for the left. To get more, they attack another facet of Americanism – personal freedom of association – individual liberty itself. While pursuing state recognition by contorting the Constitution rather than through proper democratic channels, the modern liberal establishment has simultaneously moved to impose private recognition of same sex marital unions. Whether it involves a private contract to purchase a wedding cake or a private contract to perform the marriage ceremony, modern liberalism has begun its effort to impose its will upon private actors. And who is to implement and exercise the force of law upon private parties to make them recognize and service same sex marriage? The state, of course.

A 2013 Coeur d’Alene Idaho ordinance which bans discrimination based on sexual orientation in places of public accommodation is only one of the first in what is sure to be many, many efforts by the left to force private actors to recognize and serve same sex couples in violation of their religious beliefs or personal preferences. Though religious entities are exempt from the ordinance, city officials have taken the position that because these particular individuals operate a for-profit wedding chapel, they should be obligated to conform to the requirements of the ordinance. Setting aside for the moment the left’s almost maniacal obsession with demonizing the profit motive (which motivates each and every rational human being), we see here in bold relief the tyrannical methodology of modern liberalism. The left works to simultaneously eliminate state restraints with respect to their cause while imposing state enforced coercions upon other individuals in order to give favored liberal classes special protections and recognition in private matters. Modern liberalism uses the judicial function of state authority to achieve a falsely modified Constitution in order to impose upon a sovereign people an individual “right” to same sex marriage to which the people never assented while at the same time using the force of law in the legislative arena to impose restrictions on the liberties of others.

For another illustration of the same methodology at work, consider abortion and the pretend “debate” over contraception. For modern liberals, it is not enough that the states can no longer outlaw abortions or contraception making both completely legal across the country. Modern liberalism wants much more. Independent individuals – other citizens – must be forced to pay for abortions and contraceptives with their tax dollars or by and through the health insurance that they purchase as employers. Whether these other citizens consent or volunteer to fund abortions and contraceptives for others can not be determinative. They must, by force of law, be compelled to provide such funding. Thus, the modern liberal approach to liberty is selective. “Liberty!” is their battle cry when they argue that the states should not have the authority to exclude same sex marriages. But “liberty” will find no place in their arguments in favor of state imposed coercions and restraints forcing the rest of society to act in a certain manner when dealing with same sex married couples in what would otherwise be private, voluntary transactions.

Modern liberalism is an “ends justifies the means – win at all cost” ideology devoid of principles. It has no regard for the rule of law, no regard for the Constitution and no regard for the popular sovereignty of the American people. Constitutionalists value individual liberty and therefore revere the rule of law and the procedural superstructure set up by the Constitution despite the fact that they know strict adherence to those principles means they can not win every political issue. Modern liberalism wants only one thing – its way. Principles and values such as strict adherence to the Constitution, the rule of law, popular sovereignty, even individual liberty only impede their single minded pursuit of transforming society to conform to their notion of social justice. The ruination of Americanism in the process is not a sacrifice. It’s a strategic success.

The grass roots effort to defeat the Common Core might be interpreted by many as a sign of hope. In an age when federal overreach is routine and the centralization of governmental authority in Washington is widely accepted or even welcomed by the States, the media and a great portion of the citizenry, a proponent of decentralized government and constitutionalism might find the opposition to the Common Core a welcome reason for optimism. Perhaps not since the advent of the Tea Party movement has there been an issue that coalesced individuals in a cause against centralized government on such a wide spread basis.

To be sure, the reasons for the movement against the Common Core are many. Not all are motivated by concern over the potential for the centralization of education in Washington or the potential loss of local control over curricula. Some are motivated by concern over the testing protocol, others by the collection and consolidation of personal information and privacy issues implicated thereby and still others by the perceived lack of rigor embodied in the standards. But it is clear that the “federalization” of education is among the primary concerns giving cause for the movement. For this reason, constitutionalists might be heard to breathe a sigh of relief. Sadly, further reflection leads me to conclude the opposite—the grass roots movement to defeat the Common Core illustrates the magnitude of the centralization problem and the revelation is disheartening.

One would have a difficult time identifying an issue that could be more important to people than education. The public apathy for political issues is widespread and obvious, but Americans still love their children and grandchildren and we still go to great lengths to plan their futures for the best and to manage their lives while they remain under our care. During the debate over the Affordable Care Act, it occurred to me on many occasions that there are not many issues more personal and thus, of greater importance than health care. It seems to me that maintaining the ability to influence public education is one such issue.

Unfortunately, the debate over the ACA became bogged down in the minutia over the efficacy and costs of the plan. Rather than focus on the free market and constitutional principles involved and the implications for human liberty, the debate was too much based on the pragmatic; would the ACA improve healthcare, how much would it cost, and how would it be paid for. Happily, it does seem that the debate over the Common Core may be developing somewhat more of a focus on the fundamental principles involved. Certainly the proponents of Common Core would be happy if the debate could be made to focus on pragmatic issues. Arguing about the supposed benefits of nationwide standards or a technical debate over the details of the standards themselves would suit their purpose. If the debate can be made to be technical and obscure they know that most eyes will glaze over and they’ll be far more likely to get the result they want—people leave it to others to figure out the best approach and bow out of the debate. As long as a substantial focus of the debate remains on the ability to affect decision making at the local level, the grass roots is more likely to remain interested and engaged.

For today, my sad point is this: If it is this difficult to gain sufficient widespread support to defeat Common Core, an issue which implicates our ability to influence and affect our children’s education, how far removed must we be from an age where constitutionalism and widely dispersed government are generally appreciated and ultimately demanded? If Americans will not “wake up” in sufficient numbers to protect the free market in health care or demand a continued say in the education of their children, what will be required to awaken them to all the other benefits of constitutionalism? The decades long trend of diminishing State sovereignty and federalism in favor of growing and centralized power in Washington must be broken if we are to enjoy the larger liberty, free markets and individual role in self government contemplated by the founders. That it is so difficult and effortful to engage sufficient numbers of Americans in the effort to ensure the continued local control of public education does not bode well for breaking that trend without some larger, likely terrible eventuality to trigger a national introspection on the slow decay of our first principles.